If your claim proceeds to a hearing, you can expect a fair, impartial, safe, supportive, culturally appropriate and respectful hearing. The hearing is your opportunity to provide testimony to explain in detail what happened to you at the residential school and how it affected your life.
You are responsible for proving that the abuse happened as described in your IAP applications. You will prove this by providing testimony at your IAP hearing. Your hearing will be private – closed to the public – and will not be in a courtroom. You will tell your story to the adjudicator, who will ask you questions and manage the hearing.
Besides you, your hearing will include your lawyer (if you have one), a representative of the Government of Canada, possibly a representative of the church and any witnesses witnesses you may have for your claim. Others who may attend, but only with your permission, include your support people, a Resolution Health Support Worker, an Elder and an interpreter. The Secretariat will help you with the costs to bring these individuals to your hearing).
You are encouraged to raise any concerns and to ask questions during the hearing to make it a positive experience. Every effort will be made to create a comfortable and non-threatening atmosphere so that you can safely be heard.
Scheduling your hearing
Once your claim is identified as ready for a hearing, the Secretariat will schedule a suitable hearing date and find a location and an available adjudicator, if one is not already assigned. Your preferences will be taken into account when scheduling the hearing. For example, if you ask for your hearing to be held in a certain city or for the adjudicator to be male, the Secretariat will do its best to accommodate your request.
You, or your lawyer if you have one, will be notified of your hearing date by letter about three to five months before the hearing. This gives you time to prepare for the hearing and make appropriate arrangements at work or at home.
Making arrangements for your hearing
Besides scheduling your hearing, the Secretariat’s Hearings Management Unit is responsible for making other arrangements for your hearing, including:
- booking the location, you can state your preference for the location where your hearing will take place
- making travel arrangements (transportation and hotels) for you and your support people (If you don’t have a lawyer, the Secretariat will contact you directly when making travel plans.)
- arranging an adjudicator – you can state whether you prefer a male or female adjudicator
- paying you, or your lawyer if you have one, for out-of-pocket expenses, such as parking, meal costs and mileage for your car, as well as a travel advance
Hearings are often booked in hotel conference rooms. Or you can ask for your hearing to be in the Secretariat’s hearing room in Vancouver.
About four to six weeks before the hearing date when your hearing location is booked, the Secretariat will send a Notice of Hearing form to you or to your lawyer if you have one. This form includes details on the date, time and location of your hearing. The form also includes information on travel arrangements and accommodations.
Your hearing your way
You have a lot of input into how your hearing will be arranged. Before your hearing is scheduled, you will complete forms 1A and 1B to say what your preferences are, including:
- where you would like the hearing to be – the Secretariat will do its best to accommodate your request, whether you would like your hearing in your community or somewhere else in Canada
- how the hearing begins – in a way that respects your beliefs and traditions; for instance, with a song, a ceremony, or a prayer
- how you make an oath – an oath on a Bible, an oath on an Eagle Feather or simply affirming you will tell the truth
- whether you want a male or female adjudicator – in the accelerated hearing process, however, this preference cannot always be accommodated
Three different tracks
The IAP deals with residential school abuse claims in three tracks:
- standard track;
- complex track; and
- court track
Each has its own standards of proof for a claim to be successful.
The standard track is used for dealing with claims of abuse. Most IAP claims are dealt with in this track. Claims under the standard track are less complex because claimants must prove their claims solely on a balance of probabilities. That means the adjudicator makes a decision based on whether it is more likely than not that the abuse happened.
The adjudicator will work with you to establish the facts of your case, asking you questions. Your answers will need to prove to the adjudicator that:
- the abuse is more likely to have happened than not;
- you were harmed by the abuse; and
- the harm you experienced is likely linked to the proven abuse.
Under this standard of proof, the adjudicator does not need as much evidence to award compensation.
Claims for other wrongful acts and Actual Income Loss proceed in the complex track. If your application includes these claims, you will have an early track assessment pre-hearing teleconference to confirm whether your claim should continue in the complex track or be changed to the standard track. This teleconference is held before your hearing to ensure you will be able to provide the evidence needed to prove other wrongful acts or actual income loss. The adjudicator may order additional documents to be collected.
Under this track, you must prove your claim using the court standard of proof – you must be able to show a direct link between the abuse you suffered and the actual income you lost or opportunities you missed. Using this standard of proof, the adjudicator requires more evidence to make a decision.
It is important to hire a lawyer if your claim is in the complex track. Your lawyer will be able to advise you on how to meet the court standard of proof. Your lawyer can also ask the adjudicator to consider specific parts of your testimony. This is important because the adjudicator’s questions will be more in-depth for a complex track hearing.
In rare circumstances, a request can be made to the Chief Adjudicator to allow a claim to be brought to the courts. This approach would be for claims that are exceptionally serious or complicated, such as:
- There is enough evidence that the claimant lost more income or opportunity than the maximum compensation allowed ($250,000).
- There is enough evidence that the physical harms experienced were catastrophic and that the compensation available through the courts may be more than the maximum compensation allowed. For example, such a physical harm could be a permanent significantly disabling physical injury.
- In any other wrongful act claim, the evidence involved in the harms claimed is so complex and extensive that going to the courts is the most appropriate action.
Unlike IAP hearings, court hearings would be open to the public and you would be subject to cross-examination.
Your claim may require a teleconference before your hearing for a number of reasons:
- if you are a self-represented claimant and would like some direction on whether to have your claim heard in the standard track or the complex track
- if your claim is in the complex track
- if there are jurisdictional issues related to your claim
Early track assessment pre-hearing teleconference
If your claim has a combination of standard and complex track claims – for example, a physical abuse claim and a claim for other wrongful act or sexual abuse and an Actual Income Loss claim – you must choose which track you would like to follow. If you have a lawyer, your lawyer can help you make this decision.
If you don’t have a lawyer and you’re uncertain, an early track assessment teleconference can help you decide which track to follow. You should discuss setting up an early track assessment teleconference with your Claimant Support Officer. This teleconference will take place shortly after your claim is admitted to the process.
The teleconference will include an adjudicator, a Government of Canada representative, you and your Claimant Support Officer. They will each have a copy of your application. During the teleconference, the adjudicator and the Government of Canada representative will provide information to you on the standard and complex tracks and how your choice will affect your claim.
You can then make a well-informed decision on which track you would like your claim to follow. Although there is always the option of changing which track to use, the process will be completed more quickly if you’re on the right track as soon as possible.
Jurisdictional pre-hearing teleconferences
A jurisdictional issue arises when one of the parties, usually the Government of Canada, argues that a claim falls outside the scope of what the IAP can deal with. These jurisdictional issues can be raised after a claim is admitted into the IAP. Examples of why a claim may be flagged for a jurisdictional issue are:
- Did not attend a recognized residential school. The Settlement Agreement lists which residential schools are included in the IAP. Some claimants may have attended a school with the same name as a recognized residential school, but ultimately the school is not part of the Settlement Agreement.
- Attended outside the years of operation. All the recognized residential school have a start and end date which identifies when the Government of Canada was involved in the administration and/or day-to-day operations. Some claimants may have attended a recognized residential school, but not during the time when the Government of Canada was involved.
If a claim falls outside the jurisdiction of the IAP, it is dismissed. The parties to the Settlement Agreement don’t want claimants to invest emotional effort, time and financial resources only to find out at the end of the process that their claims are not eligible for compensation. For this reason, jurisdictional issues are examined as soon as possible with a jurisdictional pre-hearing teleconference.
All requests for a jurisdictional review are sent to the office of the Chief Adjudicator, which will assign an adjudicator to review the file. The adjudicator will then determine if a jurisdictional pre-hearing teleconference is necessary. If the adjudicator decides a teleconference is not necessary, the claim will continue on the path toward a hearing.
If a jurisdictional pre-hearing teleconference is necessary, the following steps are taken:
- Preparing for the teleconference. The parties (the Government of Canada and you, or your lawyer if you have one) will be notified in writing. Each party has the option to provide written statements or other evidence regarding the jurisdictional issue. These written statements or other evidence will be shared with the other party and the adjudicator before the teleconference is scheduled.
- Conducting the teleconference. During the teleconference, the adjudicator will hear the submissions from both parties. If you don’t have a lawyer, your Claimant Support Officer will also listen in on the teleconference. The teleconference will be recorded.
- Issuing the decision on jurisdiction. After reviewing the submissions, the adjudicator will decide whether your claim can continue in the IAP or if it will be dismissed. If your claim can continue, the adjudicator will issue a letter to the parties. If your claim cannot continue, the adjudicator will issue a jurisdictional pre-hearing teleconference decision to the parties advising the claim is to be dismissed. Like compensation decisions, these decisions are subject to reviews.
Providing your testimony at your hearing
For most residential school abuse claims, the only evidence of what happened is the testimony of the claimant. There are rarely any witnesses or other evidence available to help claimants prove their abuse claims. Claimant testimony is the most important piece of evidence that may lead to compensation, which is why it is so important that you be as detailed as possible at your hearing.
The adjudicator will give you every opportunity to provide detailed testimony by asking open-ended questions. Adjudicators are trained to draw out the full story of what happened to ensure that the legal tests are met. While the adjudicator is asking questions and listening to your testimony, he or she will also be assessing your credibility and reliability. These two factors are essential for a successful claim. When adjudicators assess credibility, they are asking themselves – is this claimant trying to tell the truth? When adjudicators assess reliability, they are asking themselves – is this claimant able to give accurate testimony? Is what this claimant telling me consistent with what we know about the residential school?
These hearings can be difficult. The adjudicator’s questioning can lead to emotional trauma. Do what you can to prepare yourself emotionally and mentally to have a successful hearing. At the hearing, take breaks when you need to. If you have support people there, remember that they want to help. Your Claimant Support Officer will also give you information about the health supports available to help you prepare for your hearing and to provide emotional and wellness support after the hearing. Claimants are entitled to health support services prior to, during and following their hearing. This continues until the end of the Settlement Agreement.
How an abuse claim is proven
The Settlement Agreement, specifically pages 3–5 of schedule D, states which abuse acts are eligible for compensation – also called compensable abuse – as well as the legal tests that need to be met for compensation to be awarded. Schedule D establishes the rules and processes for the IAP. Everything about the IAP, from the powers of adjudicators to the compensation rules, comes from Schedule D. You can obtain Schedule D from your Claimant Support Officer, by calling 1-866-879-4913 or by clicking here.
Activities after the in-person hearing – why the process can take longer
After your hearing, the adjudicator may need more information before writing a decision on your claim. This is called an adjourned hearing. If this happens, the conclusion of the hearing will be delayed until these activities have been completed. A new hearing date may be scheduled. This hearing may be conducted by teleconference. You may be asked to provide additional testimony and answer more questions from the adjudicator to finish telling your story. This will also be the time to provide final submissions.
Your claim may need one or more of the items listed below before the adjudicator can write a decision:
- Continuation hearing. If you didn’t finish telling your story on the first day, you may be asked to participate in a second hearing. Your second hearing is usually held about three months after the first hearing.
- More documents. If the adjudicator requires additional documents – particularly after an accelerated hearing – your lawyer or Claimant Support Officer may have to collect these documents after your hearing. Depending on how many documents and the type of documents required, it may take only a few weeks or several months to collect them.
- Alleged perpetrator hearing. The people you named as abusers in your IAP application are called ‘alleged perpetrators’ and will be contacted by the Government of Canada. If found and if they wish to participate, an alleged perpetrator hearing is then scheduled. This can take three to four months. You do not have to attend this hearing, but you can if you would like to hear the alleged abuser’s testimony. The alleged perpetrator will not know anything about your claim except for the abuse allegations you made against them.
- Witness hearing. During your hearing, if you said that another person witnessed the abuse that you suffered and that witness is not already participating in your hearing, the adjudicator may ask to speak with that witness. If the witness is found and willing to participate, a witness hearing is scheduled as soon as possible. This can take three to four months. The witness will not know anything about your claim except for the abuse that you say the person witnessed.
- Psychological assessment. Depending on your claim, the adjudicator may order a psychological assessment. You will need to meet with a psychologist who will prepare a report on how your time at the residential school affected you. This process usually takes three to four months.
- Medical assessment. Depending on your claim, the adjudicator may order a medical assessment. If you are claiming a physical injury (for example, hearing loss) but there is no evidence of the injury in your medical records, the adjudicator may require that you meet with a doctor who will examine you and prepare a report with their findings. This process usually takes three to four months.
- Transcript request. You may have noticed that the adjudicator recorded your testimony at your hearing. On occasion, the adjudicator may require that the recording be typed up. This is called a transcript. It helps remind the adjudicator what you said and will help the adjudicator write the decision on your claim. The transcript takes two to three weeks to prepare and may delay the adjudicator’s decision. You can also have a copy of your transcript if you want one. Ask your lawyer or your Claimant Support Officer to request this for you.
You can do what you wish with this transcript including keeping it, destroying it or publishing it. You can also share your transcript with the National Centre for Truth and Reconciliation, an archive that has been developed specifically for keeping claimants’ hearing transcripts in order to preserve forever the stories of Canada’s former residential school students.
Keep in touch with your lawyer or Claimant Support Officer for updates on these items.
After all activities are completed, you or your lawyer and the Government of Canada representative will make final submissions. Final submissions can take place in person, right after your hearing. More often, final submissions are teleconferences that are usually held one or two weeks after the adjudicator has everything needed to start writing your decision. The call itself usually takes less than an hour.
Final submissions are an opportunity to summarize your testimony. The parties also give recommendations to the adjudicator on where the claim should fall in each of the levels listed on pages 4 and 5 in schedule D of the Settlement Agreement, including what portion of the future care plan should be funded. These recommendations will be based on the evidence of your testimony and mandatory documents. The adjudicator will consider these final submissions when writing the decision.
Having a lawyer is particularly helpful at the final submissions stage. During final submissions, your lawyer can make arguments to strengthen your claim. Your lawyer can also make a case for the level of compensation you should receive, based on the evidence presented at the hearing.
If you do not have a lawyer, you will be expected to make your own final submission. The adjudicator and Government of Canada representative will provide support and guidance to assist you through final submissions. In addition, your Claimant Support Officer will educate you about final submissions well in advance of the hearing so that you can prepare for this step.
At final submissions, the Government of Canada representative speaks first. If you agree with the representative’s statements, you can choose to say that you agree and not offer further statement.
You may contact a health support worker for you and your family, either in person or by telephone at anytime throughout the IAP. You can request health support services at any point during the IAP, not just during the hearing itself.
Click here for more information about the Resolution Health Support Program or call the 24-hour National Crisis Line at 1-866-925-4419.